The Chairman of the Repatriation Commission has forwarded for opinion the following memorandum:

The question has been raised as to whether when a pension is cancelled in accordance with section 34 of the Act, a new pension may legally be granted under Proviso (a) (i) of section 23 of the Australian Soldiers' Repatriation Act, which provides, inter alia, that a pension may be granted if at any time a parent of a deceased member is without adequate means of support.

On the other hand, the definition 'dependant' in section 22 (e) and the section above referred to seems to indicate that a pension on the grounds of inadequate means of support may be granted to a parent who at any time is without means of support.

On the other hand, section 34 provides that a pension payable to any female dependant of a member of the Forces shall not be continued for a period of more than two years after her marriage or remarriage.

The case in point to be decided is one where a widowed mother was in receipt of a pension on the grounds of dependence on her deceased soldier son. Upon her remarriage, the pension was cancelled two years after that event under section 34 of the Act. Her second husband subsequently died and left her penniless. The Commission is now asked to determine the claim submitted by her for a pension on the grounds of inadequate means of support, and desires to be advised whether notwithstanding section 34 of the Act, a pension may be granted to the female dependant under section 23 of the Act.

Another case for determination is one in which the second husband has deserted her and failed to contribute to her support, and at the expiration of the two years' limitation laid down by section 34, the soldier's mother is applying for a pension on the grounds that she is without adequate means of support. Section 23 of the Australian Soldiers' Repatriation Act 1920-1921 provides, inter alia, that the Commonwealth is liable, under certain circumstances specified in the section to pay, to the dependants of a member of the Forces, pensions in accordance with the Act, provided that a claim for payment of a pension is made, in the case of the death of a member of the Forces, by a dependant not more than six months after the date of the death of the member, except in the case of parents who though not dependent upon the earnings of the member at the time of his death are at any time without adequate means of support.

In my opinion the words 'though not dependent upon ... the member at the time of his death' do not limit the effect of the exception in the case of parents, but are merely intended to emphasise the fact that dependence at the time of the death of the member is not necessary in order that parents may take the benefit of the exception.

In my opinion, therefore, the parent of a deceased member of the Forces who is, at any time after the occurrence of the event resulting in his death, without adequate means of support (see section 22, definition of 'Dependants' paragraph (e)) is eligible for the grant of a pension under the Act.

Pensions may, therefore, be granted to the persons mentioned in the two cases cited if they are without adequate means of support. In the second case, however,

I would suggest that before a pension is granted the claimant be required to satisfy the Commission that she has made a reasonable attempt to compel her husband to contribute to her support.

[Vol. 18, p. 493]